89 N.Y.S. 481 | N.Y. App. Div. | 1904
The plaintiff purchased a threshing machine from the defendant upon condition that the machine should remain the property of the vendor until the purchase price, payable in installments and represented by promissory notes, should be fully paid.
Upon the execution of the contract and delivery of the machine to the plaintiff a portion of the purchase price was paid, and four promissory notes of fifty-five dollars each, due at various times, were delivered to the defendant. Prior to the commencement of this action the plaintiff paid the one first becoming due, with interest.
The plaintiff claims that it was a part of his contract of purchase that the defendant should keep on hand in his vicinity parts of the machine for the purpose of repairs, and that because of breach thereof he was deprived of the profits of a threshing season. The action was commenced'in Justice’s Court to recover such damages. The defendant set up, by way of counterclaim, two of the notes which were then due. The plaintiff obtained judgment, whereupon the defendant appealed to the County Court for a new trial, on which the plaintiff was nonsuited as to his cause of action and a judgment was directed against him on the counterclaim for the amount due on the notes.
Without passing upon the question as to whether or not the
. The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new 'trial granted* with costs to appellant to abide event.